I am the named executor of a Will that contains assets in Spain – help!

  • Domingo
    Domingo
    Domingo has 10 years experience as a practising lawyer in Gran Canaria and specialises in providing expert advice in property law matters, inheritances, family law and contract law issues, in particular time-share agreements.

When a relative or friend who has assets in Spain names you as the executor of their Will, at the relevant time, you will need to take responsibility for dealing with their assets in this country – paying off any debts and distributing the remaining estate to the beneficiaries.

Executors’ Responsibilities and Liability

This can be a complex, time-consuming and often stressful role, that few are truly adequately prepared for: you will need to make several trips to Spain to handle Spanish paperwork; of course it is likely that there will be different assets to deal with, potentially a significant tax liability, or potential disputes among beneficiaries.

An executor in Spain has the following main tasks:  take action to protect the assets of the estate, makes distributions of property to beneficiaries and pay any debts and taxes that are due.

If an executor mis-manages estate funds and this results in a loss for the beneficiaries, the executor can be found personally liable, so it is important to know that a person named as an executor does have the right to refuse the position. The executor will administer an estate and remains in charge until it is legally closed. After that, creditors and taxes, if any, must be paid and then the named beneficiaries are entitled to their share of what is left.

Delegation to a local expert

Given that this is a complex role, even for a native Spanish speaker, a sensible solution for anyone not fully conversant in Spanish would be to delegate this responsibility to a Spanish solicitor. A good Spanish solicitor will help you deal with formalities, advise on tax, assist with selling the assets and paying off the debts, dealing with distributions to beneficiaries, and preparing the estate accounts. Below we detail how this would function in practice.

  • According to Spanish legislation, a Spanish solicitor, when acting as a ‘delegated executor’ has the same responsibilities as the actual executor. The Spanish Civil Code  specifies the following:
  • Oversee  the  security of the assets that form the deceased’s estate.
  • Ensure that the assets are maintained until the inventory has been made, taking out such insurance policies as would be prudent to protect them.
  • Provide notification to the beneficiaries that the succession process has started.
  • Determine that the distribution of the assets has been made and that there are sufficient assets to cover any debts owing by the estate of the deceased.

According to Article 1344 of the Spanish Civil Code when the executor fails to meet the obligations set out above, the executor will be responsible for any damages suffered by creditors. However executor obligations also relate to the beneficiaries who may also take legal measures against the executor if they fail to fulfil their obligations.

Power of Attorney

A ‘power of attorney’ is a legal document used to delegate decision-making authority to a third-party- and when dealing with an inheritance in Spain it will allow a solicitor  to manage the following aspects of the process: financial matters, such as the ability to sign cheques, make deposits, pay bills, manage financial and business affairs, sell property, obtain insurance, manage investments and pay taxes.

In addition, powers of attorney can be drafted to meet your specific needs as every family’s situation is slightly unique. Some prefer to confer only specific areas of authority that they wish to delegate.

Quick Tips when Dealing with Assets

Some final thoughts on actions you may need to take if you are an executor of a Spanish Will:

Before proceeding to liquidate assets such as properties, it will be necessary to determine the value of the property via a local real estate agency. Note that a professional evaluation would require a technical architect who will charge a fee.  If the estate includes artwork and antiques, any valuation will require an evaluation by the relevant experts in those fields, who may well charge a fee for that service. It would also be advisable to insure the properties since anything could happen in the meantime such as theft or damage.

It is recommended to open a new bank account where the executor appears as the account-holder, until the moment of the liquidation of the properties which are part of the succession.

One of the responsibilities of an executor is to use the estate’s funds to pay for funeral and burial expenses.  The funeral home will also provide the executor with copies of the death certificate, which will be needed for several purposes, including closing financial accounts and canceling any state benefit payments.

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